REE
SPEECH desirable though it may be, is not a naturally
occurring phenomenon. People simply do not like to listen to
attitudes they deem offensive. Even liberals (we use the
word here in its old fashioned sense), are often tempted to
bend the rules of free discourse to shut up some obnoxious
racist or misogynist. We argued in our editorial of Jan. 4,
however, that in the long run, the benefits of free speech
outweigh the costs of offensiveness.

Not everyone agrees. Like many other scholars, Warren
Kinsella, whose reply [not
posted] appears on the opposite page, argues that
expressions of hatred should be legally prohibited. Fair
enough. But Mr. Kinsella goes farther than the average
liberal (we revert here to the modern meaning). He argues
our editorial amounted to a "whitewash" of the hate
merchants targeted by Canadian censorship. To make this
point, however, he quoted the editorial far too freely.

For instance, the National Post did not say that all laws
against promoting hatred and genocide were "potentially
sinister" and "authoritarian and illiberal". We wrote that a
proposed amendment forbidding defendants to cite truth as a
defence was "potentially sinister" -- and so it is. And we
said that it and other proposals for broadening hate-speech
laws could be put to "authoritarian and illiberal purposes"
-- and so they can. Indeed, as we pointed out, current law
has been put to the authoritarian and illiberal purpose of
forcing the mayor of Fredericton to mouth opinions with
which he disagrees.

Canada's hate-speech jurisprudence is built around two
Supreme Court of Canada decisions: One upholding a federal
hate-speech law as applied to Alberta Jew-hater, James
Keegstra; the other partially affirming a tribunal's
finding against Nova Scotia anti-Semite Malcolm Ross.
Mr. Kinsella claims we described their views as "ideas". In
fact, we prefaced "ideas" with "evil" and "offensive". But
while we have nothing but contempt for the views of Messrs.
Ross and Keegstra, it is clear that the legal cure to which
they were subjected is worse than the disease with which
they were diagnosed. It is "extraordinary" in a country with
constitutional guarantees of free speech that a court can
order someone not to express his opinions. For the moment,
the banned opinions are those of a tiny and despised
minority; that may not always be the case.

Thus, Mr. Kinsella dismisses recent American legal
decisions expanding free speech by stating that in the
United States "racial tensions remain proportionately worse
than anywhere else on the planet". Really? Worse than
Rwanda? Or Bosnia? Or Indonesia? One hesitates to imagine
the purposes to which a ruthless prosecutor could put this
ethnic slur.

Oddly for a lawyer, however, Mr. Kinsella seems never to
have heard the legal tag: Hard cases make bad laws.
Censorship may be intended to suppress only those who
express the most vicious and wicked views. But in the end,
it may be enforced against those whose views are merely
offensive to the majority. That is a cure worse than the
illness -- though it may also aggravate the illness. History
demonstrates that an enforced orthodoxy always lends a
martyr's nobility and a dissident's cachet to its heretics.
The case of hate speech is no different.